803 F.2d 885 (7th Cir. 1986), 85-1690, United States v. Verrusio

Docket Nº:85-1690.
Citation:803 F.2d 885
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. George M. VERRUSIO, Defendant-Appellant.
Case Date:October 09, 1986
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 885

803 F.2d 885 (7th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

George M. VERRUSIO, Defendant-Appellant.

No. 85-1690.

United States Court of Appeals, Seventh Circuit

October 9, 1986

Argued Dec. 13, 1985.

As Amended Oct. 23, 1986.

Page 886

Richard Kammen, McClure, McClure & Dammen, Indianapolis, Ind., for defendant-appellant.

Robert Perry, Asst. U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before CUMMINGS and CUDAHY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

The primary issue presented in this appeal is whether the district court properly denied the defendant's motion to dismiss three counts of an indictment on the ground that those charges violated a prior plea agreement. For the reasons stated below, we will reverse the ruling on the motion to dismiss and remand for further proceedings.

I

In December 1977 George Michael Verrusio was arrested for possession of cocaine at Indianapolis International Airport by Drug Enforcement Administration ("DEA") agents. The details of that arrest are set forth in our opinion addressing Verrusio's motion to suppress evidence. United States v. Verrusio, 742 F.2d 1077 (7th Cir.1984).

In June 1979 Verrusio was indicted on charges arising from his 1977 arrest and from additional drug offenses that he allegedly committed in December 1978. The indictment charged him with one felony violation of 21 U.S.C. Sec. 841(a)(1), which prohibits possession of a controlled substance with intent to distribute, and eight misdemeanor violations of 21 U.S.C. Sec. 844(a), which prohibits possession of a controlled substance.

Verrusio and the government subsequently entered into a plea agreement. 1

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Verrusio pled guilty to the misdemeanor charged in Count 6 of the indictment in exchange for dismissal of the remaining eight counts. He also was to testify before a grand jury and, if necessary, at the trials of his co-conspirators, with regard to his knowledge of and involvement in a conspiracy with certain individuals, including one Fred McCord, to transport cocaine. The government agreed that, in return for such testimony, it would not file additional charges against Verrusio based upon his part in the same alleged conspiracy.

Verrusio appeared before a grand jury in January 1980. He testified that his involvement in the conspiracy consisted only of transporting packages of cocaine from Florida to Indianapolis on four occasions in 1977 for one Fred McCord. In February 1980 Verrusio was sentenced on Count 6 of the indictment to thirty days of work release and one year of probation. He has served that sentence.

The government came to believe that Verrusio had not been truthful in his statements to law enforcement officials and in his grand jury testimony. As a result, Verrusio was indicted again in 1982 on four charges. Counts 1, 2, and 3 of the 1982 indictment related to his 1977 arrest; the government previously had dismissed similar charges pursuant to the plea agreement. Count 4 charged that Verrusio perjured himself in his grand jury testimony.

Verrusio moved to dismiss Counts 1, 2, and 3 of the indictment. A hearing was held on the motion to dismiss in November 1982. The only witness to testify was DEA agent Thomas Casey. Casey stated that Verrusio's grand jury testimony that he was merely a courier for McCord was directly contradicted by the statements of and testimony before another grand jury of McCord, Thomas Smith, Michael Cockman, and William Graham. After taking Verrusio's motion under advisement, the district court denied the motion to dismiss. The district court subsequently dismissed without prejudice under the Speedy Trial Act count 4 charging perjury. The government never refiled that count and the statute of limitations has run with respect to the perjury charge. Pursuant to Fed.R.Crim.P. 11(a)(2), which authorizes conditional pleas of guilty, Verrusio entered a conditional guilty plea to Count 1 of the 1982 indictment. He was sentenced to 15-months imprisonment and is on bond pending this appeal from the denial of his motion to dismiss.

II

  1. Pre-Indictment Proceedings

    A plea agreement is a contract. See, e.g., United States v. Fields, 766 F.2d

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    1161, 1168 (7th Cir.1985); United States v. Strawser, 739 F.2d 1226, 1230 (7th Cir.), cert. denied, 469 U.S. 1038, 105 S.Ct. 518, 83 L.Ed.2d 407 (1984). "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). Conversely, "a defendant's failure to fulfill the terms of a pretrial agreement relieves the government of its reciprocal obligations under the agreement." United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir.), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 & 454 U.S. 831, 102 S.Ct. 127, 70 L.Ed.2d 108 (1982); see also United States v. Wood, 780 F.2d 929, 932 (11th Cir.1986) (breach of immunity agreement); United States v. Stirling, 571 F.2d 708, 731-32 (2d Cir.1978) (plea bargain); United States v. McCarthy, 445 F.2d 587, 591 (7th Cir.1971) (Stevens, J.) (plea bargain).

    Both parties agree that due process prevents the government from determining unilaterally that the defendant breached the plea agreement. See Calabrese, 645 F.2d at 1390; United States v. Simmons, 537 F.2d 1260, 1261 (4th Cir.1976). In this case, the determination that Verrusio breached the plea agreement was not made by the government alone, but by the district court after an evidentiary hearing. The pre-trial hearing conducted by the district court thus afforded Verrusio an opportunity to be heard. Verrusio maintains, however, that the government, as a matter of due process, must obtain a judicial determination that he breached the plea agreement before it can reindict him on charges that were dismissed or not brought pursuant to the plea agreement. We disagree.

    Our analysis begins by ascertaining whether Verrusio possesses an interest that is protected by due process. Whether his interest is more properly characterized as a property or a liberty interest, cf. Campbell v. Miller, 787 F.2d 217, 222 (7th Cir.1986) (characterization of interest inconsequential to disposition of claim), the requirements of due process apply to Verrusio's interest in enforcement of the plea agreement. See Santabello, 404 U.S. at 262, 92 S.Ct. at 498-99 (holding that a defendant has a constitutional right to enforcement of a plea bargain). Therefore, if the second indictment constituted a deprivation of his interest in enforcement of the plea agreement, then, absent exigent circumstances, 2 Verrusio would be entitled to a preindictment hearing to determine whether he breached his obligations under the plea agreement. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (pre-deprivation hearing is "root requirement" of due process).

    We, however, conclude that the second indictment did not deprive Verrusio of his interest in enforcement of the plea agreement because that indictment alone did not deny him the benefit of his bargain. As the Supreme Court has observed, "[p]lea bargaining flows from 'the mutuality of advantage' to defendants and prosecutors, each with his own reasons for wanting to avoid trial." Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978). The "advantages of pleading guilty and limiting the probable penalty are

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    obvious" to a defendant who perceives that acquittal is unlikely. Brady v. United States, 397 U.S. 742, 752, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970). The reason that a defendant enters into a plea agreement is because it is in the defendant's self-interest "to acknowledge his guilt of the lesser charge rather than risk conviction on the more serious" offenses. Scott v. United States, 419 F.2d 264, 276 (D.C.Cir.1969) (Bazelon, J.).

    In this case, at the time he entered into the plea bargain, Verrusio faced the possibility that he would be convicted of possessing, with intent to distribute, a controlled substance, a felony under 21 U.S.C. Sec. 841(a)(1), and could be imprisoned for up to 40 years and fined up to $500,000. He decided that it was in his self-interest to plead guilty to simple possession of a controlled substance, a misdemeanor under 21 U.S.C. Sec. 844. The advantage for which he bargained was that he would not run the risk of conviction on charges arising out of his participation in the conspiracy to transport cocaine. That benefit was conditioned upon his truthful testimony before the grand jury. Verrusio thus would be deprived of the benefit of his bargain only if he was tried pursuant to the second indictment without a prior judicial finding that he did not testify truthfully before the grand jury. The second indictment standing alone did not constitute a deprivation of Verrusio's interest in enforcement of the plea agreement because it did not subject him to the risk of conviction without a prior judicial determination that he breached the plea bargain.

    Our research has disclosed no case which squarely decides the issue of when a judicial determination that a defendant has breached a plea agreement is to be made. The actual procedures followed, insofar as they are reflected in reported cases, vary. Compare Strawser, 739 F.2d at 1228 (after indictment had issued, defendant filed motion to quash, claiming indictment violated plea agreement) with Wood, 780 F.2d at 930 (government informed defendant that it thought he had violated agreement and met with him in attempt to resolve the issue before...

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